Committee Comments

The law in Oklahoma relative to the issue of withdrawal from an illegal agreement as a defense to a charge of conspiracy is sparse. The Commission has found only one case which addresses the issue. Blaylock v. State, 1979 OK CR 75, 598 P.2d 251 .

The traditional view is harsh and inflexible: since the offense of conspiracy is consummated with the combination in order to effectuate an illicit goal, no subsequent act of withdrawal can exonerate the conspirator of his crime. W. LaFave & A. Scott, Criminal Law § 62, at 487 (1972). However, since Oklahoma has enacted a statutory overt act requirement, 21 O.S. 2001, § 423, there is support for the argument that the defendant is not punishable as a member of a conspiracy if he withdraws prior to the commission of the overt act by any member of the combination. As a practical matter, the defense is of little utility, since most unlawful combinations will be accompanied by overt acts, precluding the possibility for effective withdrawal.

The Model Penal Code recognizes withdrawal as an affirmative defense to a conspiracy charge, but requires that the putative conspirator must have "thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose." Model Penal Code § 5.03(6). The underlying premise for this stringent mandate is dual: (l) the defendant should be exonerated from criminal liability if a subsequent withdrawal is effected; but, (2) only where defendant assures by his conduct that the objective of the illicit agreement will not be further pursued, despite his withdrawal. Model Penal Code § 5.03, Comment (Tent. Draft No. 10, 1960).

Since the claim of effective withdrawal is a defense, the onus of producing evidence sufficient to raise that defense remains on the defendant, unless the evidence of the prosecution has raised the issue. If the defendant fails to adduce any evidence that tends to prove an effective withdrawal from the conspiracy, or if the defendant's evidence is insufficient as a matter of law, the issue of withdrawal is not presented and no instruction should be given. If the defendant presents sufficient evidence to raise the defense of withdrawal, or if the defense is raised by the evidence of the prosecution, an instruction must be given in order to apprise the jurors of the defendant's theory of the case.